1. Kaplan University PA301: ADMINISTRATIVE LAW Unit 9 Seminar: Federal Tort Claims Act

2. Unit 9 Final Exam and Final Essays Final Exam The final exam consists of 35 multiple choice and True/False questions taken from the text, covering all chapters that have been assigned throughout the term. You will have two hours to complete the exam, The exam will close permanently at 11:59pm on Tuesday, January 17, and cannot be reopened after that time for any reason. Please remember that the clock begins to run as soon as you open the exam and cannot be stopped. I strongly encourage students to submit the exam before the last day of the unit. The exam is worth 175 points. Final Exam Essays The final exam essays are available via the link on the Unit home page. There are two essay questions, BOTH of which must be answered. Although there is no set length requirement, each question can reasonably be addressed in one or two paragraphs; the total assignment should not be longer than three pages double spaced (excluding the cover page). The essays are worth a total 75 points. Cover Page A cover page is a University requirement for all written graded work. Failure to include a cover page on the final exam essays will result in a 5-point deduction.

3. Unit 9 Final Exam and Final Essays QUESTIONS?

4. Tort Claims Act In order to understand the exceptions to the federal Tort Claims Act, it is first necessary to understand the Act itself, and the reason for the Act. As you have already learned, at common law, the King was immune from prosecution. As sovereign, the King could do no wrong, and thus it was impossible to bring suit against the King or his (her) government. This is the basic common law doctrine of Sovereign Immunity. Because our legal system is based on common law, the doctrine of Sovereign Immunity exists, and is applicable in our legal system. However, because in our democratic form of government it is the people, not the sovereign, in whom power is vested, it was seen as necessary to modify the general concept. Even at common law, the King could waive sovereign immunity and permit a person to sue him (or her). But this was done on a case-by-case basis. It’s important to recognize that there is considerable dispute regarding whether the doctrine has any place in our democratic form of government. But it is generally accepted that the doctrine exists and is applicable, unless immunity has been waived.

5. Tort Claims Act Remember that the doctrine applies only to the government itself. Many persons who have claims against the government, particularly in the context of administrative law, choose to sue the government officer or employee personally, rather than or in addition to the agency itself. In some instances, even if the government is not liable, the individual employee or officer may be liable. Your text states: “A lawsuit against an officer in his or her individual capacity is the same as suing the officer personally. A lawsuit against an officer in his or her official capacity is the same as suing the government. However, a suit against an official in an official capacity that seeks injunctive relief, as opposed to damages, is a suit against the individual, not the government.” “A judgment against an officer in his or her official capacity is paid by the government. This is sometimes true of personal judgments against officers if the government has indemnified the official. Of course, if an officer behaves outrageously, it is unlikely that the government will indemnify him or her.”

6. Tort Claims Act In 1946, the Federal Tort Claims Act (FTCA) was enacted. Through this statute the United States has waived immunity from suit for a number of torts. The basic waiver provides that federal courts shall have exclusive jurisdiction of civil actions on claims against the United States, for money damages... for injury or loss of property, or personal injury or death caused by the negligent or wrongful act or omission of any employee of the Government while acting within the scope of his office or employment, under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred. This creates the general rule of liability of the United States for torts. There is no federal tort common or statutory law, so the FTCA provides that. Nevertheless, the FTCA contains a number of exceptions. Tonight we will discuss the Discretionary Function Doctrine exception.

7. Discretionary Function Doctrine The Discretionary Function Doctrine absolves the government from liability in cases involving “discretionary acts” of government employees, officers, and officials. The government is not immune for “ministerial acts”, but it is for discretionary acts. Note that this exception applies even if an agency abuses its discretion. What is a “discretionary act”? An act is discretionary if it involves making a choice from a variety of options. Discretionary acts involve judgment, planning, and policy decisions. What is a “ministerial act”? If the law requires the performance of a specific act or applies specific standards to the performance of an act, then the act is likely ministerial.

8. Discretionary Function Doctrine Example The Bowers case, contained in your text, is a good illustration of this distinction (although it is a state, not a federal case, the concepts are the same). In Bowers, a change was made to the school bus schedule, and as a result a child was struck by a car and injured while crossing the street after disembarking from the bus when the driver stopped at a location different from the child’s normal stop. The issue addressed by the court was whether the government was liable for those injuries, and thus whether the act of the driver in stopping where he did was a ministerial act or a discretionary act. The court adopted the following definition: “ The distinction between planning [discretionary] and operational [ministerial] functions is a standard, rather than a precise rule. The focus must remain on the policy underlying governmental immunity. If the act is one committed to coordinate branches of government involving policy decisions not reviewable under traditional tort standards of reasonableness, the government is immune from liability even if the act was performed negligently.”

9. Discretionary Function Doctrine Example The Bowers court concluded: “The decision by the City to change the bus route for children utilizing the Pro Re Bona stop was a planning/policy decision of the type intended to be immune from judicial challenge. Scheduling is a prime example of an act which involves a balancing of factors, an assessing of priorities, and an allocation of available resources....” Thus, the city was immune from suit for the decision to change the change in the bus route and schedule. But what about the act of the bus driver? The court held” “There being a clear plan and policy of the State of Tennessee and City of Chattanooga to provide safe passage across an immediate street toward a child’s destination, we find that a decision left to a school bus driver on where to stop at a particular intersection is an operational act not within the discretionary function exception to governmental immunity.” Thus, the city was liable for the injury to the child, because the injury was a result of a ministerial, not a discretionary act.

10. Discretionary Function Doctrine Example IMPORTANT NOTE! The decision in Bowers involved only whether the city can be sued, not whether it was liable for damages. The court concluded that the city is liable to suit, not liable for damages. This can be confusing to the inexperienced. In more easy to understand terms, the city was not immune from suit, because the discretionary acts exemption to the doctrine of sovereign immunity didn’t apply to the act of the school bus driver stopping where he stopped. Whether the city was liable for damages…in other words, whether the parents would be awarded damages, is for a jury to decide. This case merely opened the courthouse door.

11. Unit 9 DQ The Sam Smith hypothetical which forms the basis for the first discussion question this week requires an analysis of the discretionary acts exemption to the Tort Claims Act. To analyze the situation, it will be necessary to determine whether the acts of the agent were discretionary or ministerial. If the acts were discretionary, the government is immune from lawsuit because of the FTCA. However, if the acts were ministerial, the government may be sued. Focus on the distinction between ministerial and discretionary acts, and the effect of those concepts on the questions posed, not whether you feel that Sam was the object of discrimination. Remember also that there are other exeptions to the Act that may be important in the analysis and discussion.

12. QUESTIONS